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^w  ik  Court  of  fi^Iaims. 


On  the  Petition  of  the  Illinois  Central  Railroad  Company. 


Brief  of  the  i£ulicitor  of  the  United  States. 

This  is  a  claim  for  $45,000,  paid  the  United  States  for  a  conveyance 
by  deed  made  by  the  Secretary  of  War,  dated  October  14,  1852,  of  a 
part  of  the  Fort  Dearborn  military  reservation,  situated  in  the  city  of 
Chicago.  It  is  contended  that  the  company  was  entitled  to  the  land, 
in  virtue  of  two  previous  legislative  grants;  one  by  act  dated  Sept.  20, 
1850,  (9  Stat.  p.  466,)  entitled  "An  act  granting  the  right  of  way  and 
making  a  grant  of  land  to  the  States  of  Illinois,  Missiscippi  and  Ala- 
bama, in  aid  of  the  construction  of  a  railroad  from  Chicago  to  Mo- 
bile;" and  the  other  by  act  of  Aug.  4,  1852,  entitled  "An  act  to  grant 
the  right  of  way  to  all  rail  and  plank  roads,  and  macadamized  turn- 
pikes, passing  through  the  public  lands  belonging  to  the  United  States." 
10  Stat.  p.  28. 

It  is  alleged  that  the  company  made  claim,  in  due  form  and  to  the 
proper  public  officer,  for  the  land,  in  virtue  of  one  of  these  grants,  but 
it  was  rejected;  and  as  the  land  was  necessary  to  them,  and  the  delay- 
attendant  on  procuring  it  from  Congress  could  not  be  submitted  to, 
they  proposed  to  purchase,  which  was  acceded  to,  and  the  deed  given 
and  accepted,  and  possession  taken. 

There  is  no  evidence  that  the  land  in  question  is  on  the  line  or  ter- 
minus of  the  road,  as  surveyed  under  the  authority  of  Illinois,  in  pur- 
suance of  the  act  of  20th  Sept.,  1850. 

There  is  no  proof  that  any  such  claim  was  ever  heretofore  made. 
If  made,  however,  it  w^as  abandoned,  and  the  deed  accepted  and  pos- 
session taken  under  it,  which  estops  them  from  denying  the  validity  of 
the  title  so  acquired.  Brown  vs.  Hinman,  14  I.  R.  292;  7  lb.  157; 
6  lb.  34:  1  Caine,  444. 

But,  for  the  purposes  of  this  case,  it  is  immaterial  whether  the  title 
was  good  or  not.  The  Government  had  the  possession  with  claim  of 
title,  and  the  claimants  got  this;  and  the  advantage  of  it  to  them  was 
worth — as  evinced  by  the  best  evidence,  their  own  act  and  present 
admission — all  the  money  they  paid. 

It  would  be  easy  to  show,  if  the  question  were  open,  that  the  grant 
of  the  right  of  way  through  the  public  lands,  and  the  grant  of  alternate 
Bections  for  the  purpose  of  constructing  railroads,  and  also  for  sites  for 
watering-places  and  depots  on  public  lands, made  by  the  acts  referred  to, 
did  not  apply  to  those  parcels  of  ground  which  had  been  set  apart  or 

GiDxoii,  Printer,  511  Nmtb  sUeet,  WasbingtoD,  D,  C. 


appropriated  by  proper  authority  to  the  special  use  of  any  department 
or  branch  of  public  service.  The  term  '^public  lands"  does  not  ap- 
ply to  all  land  owned  by  the  United  States.  No  one  would  include 
the  grounds  of  the  Capitol  or  those  about  the  President's  mansion,  at 
the  Washington  Arsenal  and  Navy  Yard,  or  other  public  grounds  and 
squares  in  this  city,  in  a  provision  respecting  public  lands;  and  yet  in 
one  sense  ihey  are  public  lands,  being  the  property  of  the  Government 
or  the  public.  The  term  applies  only  to  lands  subject  to  sale  and  entry, 
or  which  will  be  subject  to  sale  and  entry  at  the  land  offices,  and  not 
to  those  tracts  or  parcels  which  have  been  purchased  or  reserved  for 
public  use,  in  connection  with  forts,  arsenals,  magazines,  hospitals,  or 
other  public  buildings. 

And  it  is  remarkable  that  this  principle  has  already  been  applied  by 
the  Supreme  Court  of  the  United  States  to  save  this  property  from  other 
speculators,  who,  in  like  manner,  attempted  to  grasp  it  by  bringing 
themselves  within  the  language  of  a  law  relating  to  the  public  lands. 
The  case  referred  to  is  that  of  Wilcox  vs.  Jackson,  13  Peters,  513. 
The  land  was  entered  under  the  pre-emption  laws  by  one  Beaubien, 
an  army  contractor,  who  had  been  suffered  to  reside  on  it,  and  who  had 
assigned  his  claim  to  Murray  McConnell.  McConnell  claimed  that  the 
entry  was  legalized  by  the  4th  section  of  act  of  26th  of  June,  1834,  au- 
thorizing the  sale  of  all  public  lands  in  that  district,  without  any  reserva- 
tion in  the  law  which  would  embrace  and  save  the  Fort  Dearborn  reser- 
vation. The  Supreme  Court  say:  "In  the  first  place,  we  remark  that 
we  do  not  consider  this  law  as  applying  at  all  to  the  case."  *'  But  we 
go  further,  and  say,  that  whensoever  a  tract  of  latid  shall  have  once 
been  legally  appropriated  to  any  purpose,  from  that  moment  the  land 
thus  appropriated  becomes  severed  from  the  mass  of  public  lands,  and 
that  no  subsequent  law  or  proclamation  or  sale  would  be  construed  to 
embrace  it  or  to  operate  upon  it,  although  no  reservation  were  made  of 
it."  The  court  then  proceed  to  consider  the  results  to  which  a  con- 
trary doctrine  would  lead  in  the  appropriation  of  the  fort  and  public 
buildings,  which  had  cost  hundreds  of  thousands,  by  a  person  who  had 
paid  the  Government  $94  61;  and  conclude  by  saying,  that  a  principle 
which  leads  to  such  startling  consequences  cannot  be  a  sound  one. 

In  the  case  of  the  United  States  vs.  Chicago,  (7  Howard,  193,)  the 
court,  referring  to  the  case  of  Wilcox  vs.  Jackson,  say:  "in  that  case, 
this  court  decided  that  this  was  a  legal  appropriation  of  that  quarter- 
section  of  land  to  a  public  purpose,  and  exempted  it  from  the  rules  as 
to  the  mass  of  public  lands  and  their  usual  liabilities." 

The  court,  in  the  language  already  quoted,  say  distinctly,  that  no 
saving  (although  such  exceptions  are  very  often  inserted  out  of  abundant 
caution)  is  required  in  an  act  making  grants  of  public  land,  to  protect 
lands  previously  appropriated  from  the  operation  of  such  acts.  Such 
exceptions  are  entirely  unnecessary;  and,  therefore,  they  proceed  to  say 
the  Fort  Dearborn  reservation  is  exactly  on  the  footing  with  the  grants 
to  individuals  and  to  the  State  of  Illinois,  which  are  expressly  excepted 
in  the  act  of  1834;  and,  therefore,  the  proviso  of  the  act  of  August  4, 


1852,  p.  28,  vol.  10,  not  noted  by  the  claimant,  although  it  is  con- 
tained in  one  of  the  acts  relied  on  by  him  expressly  saving  from  its  op- 
eration any  lands  not  subject  to  private  entry,  and  those  reserved  where 
lands  are  not  surveyed,  was,  like  the  saving  in  the  act  of  1834,  and 
various  similar  provisions  in  other  acts  relating  to  the  public  lands, 
wholly  useless. 

The  claimants  betray  a  consciousness  of  this,  and  endeavor  to  present 
a  case  differing  from  McConnell's,  by  alleging  that  the  Fort  Dearborn 
reservation,  or  at  least  that  part  of  it  sought  by  the  Railroad  Company, 
had  been  abandoned  as  a  military  station  at  the  time  the  act  of  1850 
became  a  law. 

The  allegation  is  unsupported  by  proof.  But  if  the  fact  was  proved 
that  the  fort  was  no  longer  garrisoned,  and  Ijad  not  been  for  several 
years,  and  the  part  sought  by  the  Railroad  Company  not  used  for  any 
public  purpose,  it  would  not  help  the  claim. 

The  court  say,  in  the  language  above  quoted,  that  when  such  reser- 
vations are  once  made,  the  land  is  severed  from  the  mass  of  public  lands, 
and  is  exempt  from  the  operation  of  acts  of  the  character  of  that  of 
1850,  without  any  further  reservation,  l^'hisland  was  reserved  in  1824, 
and  it  appears  by  the  case  in  13  Peters  to  have  been  in  the  possession  of 
the  United  States  and  their  officers  down  to  the  time  of  the  trial  of  that 
case;  and  it  appears  by  the  petition  here  to  have  been  in  the  possession 
of  the  officers  of  the  United  States,  and  by  the  plat  accompanying  the 
deed  from  the  Secretary  of  War  to  the  Railroad  Company,  that  the 
public  stable  was  situated  on  that  part  of  the  land  here  claimed. 

It  is  not  pretended  that  there  was  ever  any  formal  re-assignment  of 
this  property  to  the  Land  Department  by  the  War  Department;  but  it 
is  assumed  that  mere  non-user  by  the  War  Department  of  the  property 
for  a  military  post  for  some  years,  together  with  the  sale  by  the  Secre- 
tary of  War,  under  orders  of  the  President,  of  a  part  of  the  reservation, 
under  authority  of  the  acts  of  3d  March,  1819,  (3  Stat.,  p.  520,)  26th 
May,  1824,  (4  lb.  51 ,)  28th  April,  1838,  (4  lb.  264,)  subjected  the  part 
in  question  to  appropriation  under  the  general  acts  referred  to,  as  if  the 
reservation  had  been  removed  or  had  never  existed. 

Whether  the  acts  quoted  apply  or  not,  is  immaterial  as  affects  this 
question.  It  appears  by  the  opinion  of  Judge  McLean,  in  Rock  Island 
Bridge  case,  6  McLean's  Rep.,  517,  that  doubts  have  existed  as  to  the  op- 
eration of  these  acts,  and  whether  under  them  the  War  Department,  by 
direction  of  the  President,  was  authorized  to  dispose  of  the  sites  of  such 
forts  as  should  become  useless  as  forts  after  the  date  of  the  act  of  1819; 
and  the  judge  is  of  the  opinion  that  the  act  was  not  prospective;  but 
he  is  equally  clear,  that  land  once  reserved  for  any  public  use,  and  set 
over  by  the  Land  Department  to  another  department  for  such  objects, 
does  not  revert  to  the  Land  Department  till  it  is  formally  turned  over, 
as  was  done  in  the  case  of  Fort  Armstrong. 

(See  the  letter  of  the  Secretary  of  War  to  the  Secretary  of  the  Trea- 
sury, then  the  head  of  the  Land  Department,  dated  11th  February, 
1848,  by  which  the  site  of  Fort  Armstrong  "is  hereby  relinquished  and 


placed  at  the  disposal  of  the  Department  which  has  charge  of  the 
public  lands.") 

The  judge  thinks  (hat  lands  retroceded  in  this  way,  and  then  adver- 
tised, become  afterwards  subject  to  private  entry,  and  then  are  subject 
to  be  condenuied  and  appropriated  for  the  public  uses,  as  for  roads, 
&c.,  under  State  authority.  The  mere  ownership  of  land  by  the  Gen- 
eral Government  does  not  exempt  it  from  condemnation  for  such  pur- 
poses, he  decides,  but  he  distinctly  allows  that  a  reservation  unrecalled 
in  the  manner  that  at  Fort  Armstrong  had  been,  would  prevent  the 
condemnation  of  the  property  under  Slate  laws.  And  this  is  declared 
with  equal  distinctness  in  the  case  of  United  States  vs.  Chicago,  where 
the  question  was,  whether  streets  could  be  opened  within  the  unsold 
reservations,  when  it  was  decided  that  the  reservations  unsold  could 
not  be  touched  under  such  authority,  because,  among  other  reasons, 
the  Government  had  not  parted  with  the  title,  and  because  it  had  been 
set  apart  for  public  use,  &c.     See  7  Howard,  p.  194. 

This  was  in  1849.  Judge  McLean,  in  the  opinion  given  last  winter 
in  the  Rock  Island  Bridge  case,  says,  (p.  4  of  pamphlet  ed.,)  "the  pos- 
session of  it  (the  Fort  Dearborn  reserve)  for  public  purposes  has  never 
been  abandoned;"  whereas  he  says  of  the  Rock  Island  reserve,  "the 
possession  of  it  was  abandoned,  and  the  right  of  the  Government  re- 
leased through  the  same  authority  by  which  it  was  appropriated." 

The  Rock  Island  case  was  an  injunction  brought  by  the  United 
States  against  the  construction  of  the  bridge,  on  the  idea  that  it  was  an 
obstruction  to  the  navigation  of  the  Upper  Mississippi;  and  the  attempt 
was  made  to  interpose  the  Fort  Armstrong  rese;'2/"e  to  maintain  the  injunc- 
tion— Congress  not  having  legislated,  under  its  power,  to  regulate  com- 
merce so  as  to  authorize  the  courts  to  declare  the  bridge  a  violation  of 
any  statute  law  on  that  subject. 

"  As  already  seen,  the  court  decided  that  the  reserve,  having  been 
abandoned,  could  not  be  made  available;  and  the  ground  was  then 
taken,  that  although  abandoned  as  a  military  post,  it  was  property  of 
the  United  Stales  not  subject  to  be  condemned  for  railroad  purposes 
under  laws  of  Illinois.  This  is  also  overruled  by  Judge  McLean,  be- 
cause the  reserve  was  abandoned,  and  he  declares  it  had  thereby  become 
subject  to  condemnation. 

It  was  argued  that  the  tract  here  was  subject  to  condemnation,  and 
this  opinion  of  Judge  McLean  quoted  as  authority,  although  on  the  face 
of  the  opinion  the  Judge  expressly  distinguishes  between  the  condition 
of  the  Fort  Dearborn  reservation  and  that  of  Fort  Armstrong. 

But  if  the  land  in  question  had  ever  been  subject  to  condemnation, 
there  was  never  an  eflbrt  made  to  have  it  condemned  by  the  Railroad 
Company ;  and  no  allegation  is  made  in  the  petition  to  that  effect,  and  no 
claim  based  on  such  grounds.  All  right  of  that  kind  must  be  based  on  the 
provisions  of  the  3d  section  of  the  charter,  and  that  authorizes  proceedings 
against  any  property  for  condemnation  only  in  the  event  that  the  owner 
will  not  vohmtarily  make  terms  which  are  accepted.  Here  terms  were 
voluntarily  offered,  which   were  accepted,     The  claimant's  counsel 


argues  that  no  such  proceedings  are  required  with  respect  to  property  of 
the  United  States,  because  that  point  was  not  made  against  the  com- 
pany in  the  Bridge  case.  That  proceeding  was  to  pull  down  a  bridge 
already  constructed,  as  an  obstruction  to  navigation. 

But  in  the  United  States  vs.  Chicago,  among  reasons  for  the  injunc- 
tion granted,  the  court  say,  ''nor  was  any  compensation  proposed  or 
made,  as  in  other  cases,  for  condemning  this  land  and  damaging  the 
buildings  thereon."     p.  195. 

What  is  said  in  the  petition  about  the  price  is  not  true.  No  one  of  those 
to  whom  Lieutenant  Webster  referred  the  question  estimated  the  value 
at  less  than  $;30,000.  Webster  himself  was  of  the  opinion  that  it  was 
worth  $90,000,  and  would  have  brought  that  sum,  and  perhaps  more, 
at  the  time  of  ihe  sale,  if  the  street  were  opened  and  the  land  offered  at 
public  auction.     [See  his  letters.] 

A  proviso  in  the  act  of  August  4,  1852,  10  Stat.,  p.  28,  is,  "that 
none  of  the  foregoing  provisions  shall  apply  to  or  authorize  any  rights 
on  any  lands  other  than  such  as  are  held  for  private  entry  and  sale,  and 
such  as  are  unsurveyed  and  not  held  for  public  use  by  erection  or  im- 
provements thereon." 

This  was  not  subject  to  private  entry  and  sale. 

It  had  been  surveyed. 

It  was  held  for  public  use  by  erection  and  improvements  thereon. 

Nor  does  the  act  of  20th  September,  1850,  apply,  because  by  its 
terms,  when  any  part  of  any  of  the  sections  designated  by  even  num- 
bers shall  have  been  sold,  the  Railroad  Company  may  enter  other  sec- 
tions. Here  part  of  a  section  had  been  sold  by  the  United  States.  Now, 
whether  the  act  required,  in  such  cases,  the  selection  of  other  land  in 
lieu,  or  merely  gave  the  liberty  of  doing  so,  is  immaterial.  If  it  was  a 
right  to  elect,  no  doubt  they  have  elected  to  take  other  land.  At  all 
events,  there  is  no  evidence  that  they  elected  to  take  what  remained  of 
the  10th  section.  Besides,  the  grant  of  way  extends  only  to  the  city, 
not  into  it,  and  the  aUernate  sections  extend  no  farther;  and,  therefore, 
the  company  had  no  claim  either  by  the  grant  of  way  or  of  sections. 

The  6th  section  of  the  act  of  20th  September,  1850,  vol.  9,  p.  466, 
enacts  "that  the  lands  hereby  granted  to  the  State  shall  be  subject  to 
the  disposal  of  the  legislature  thereof  for  the  purpose  aforesaid,  and  no 
other.''' 

The  2d  section  also  provides  that  these  lands  "shall  be  disposed  of 
only  as  the  work  progresses,  and  shall  be  applied  to  no  other  purpose 
whatever." 

The  grant  of  the  lands  and  rights  made  by  the  State  of  Illinois  under 
the  act  of  lOlh  February,  1851,  was  not  in  conformity  to  these  and 
other  requirements  of  the  act  of  1850,  and  was  therefore  invalid. 

M.  BLAIR. 


